Krishan Lal vs State and Others

Y.P. Nargotra, J.—Through this writ petition filed u/s 103 of the Constitution of Jammu and Kashmir, petitioner Krishan Lal is seeking

issuance of a command directing the respondents to settle and decide the claim of petitioner No. 2 for appointment in Education Department as a

Teacher or against any other suitable post, in lieu of the land measuring 4 kanals and 2 marlas, which was taken by the respondents for

construction of school and ground, from the petitioner namely Krishan Lal.

The case of the petitioner is that in the year 1989 respondents asked the petitioner No. 1 Krishan Lal to provide his ancestral land to the

respondents for construction of school building and a ground at village Mangalai Tehsil Noushera, District Rajouri by holding out a promise that in

lieu of the land employment would be provided to one of the members of his family in education department. Acting on the promise, petitioner No.

1 handed over the possession of the land measuring 2 kanals and 9 marlas, comprising Khasra No. 280 and measuring 1 kanal and 13 marlas

comprising in Khasra No. 282, totallying 4 kanals 2 marls to the education department. Thereafter the school and ground on the land of the

petitioner No. 1, came to be constructed. However, despite petitioner's approaching the respondents for giving employment to his unemployed

daughter, petitioner No. 2, no appointment was offered.

According to petitioner No. 1, his daughter petitioner No. 2 is a graduate and is entitled to appointment. The respondents in their objections

have taken a stand that only small portion of the land, belonging to the petitioner was taken, and rest of the land on which the school building and

ground has been constructed, belongs to the Government. It has further been submitted by the respondents that petitioner had migrated to Jammu

since long and was in possession of the land through one Rikhi Ram S/O Guran Ditta. In the year 1994, the petitioner through said Rikhi Ram had

claimed compensation for the said piece of land, where upon a settlement was arrived at between petitioner No. 1 and the villagers. In pursuance

whereof the villagers collected donations for the same and an amount of Rs. 10,000/- was handed over to Rikhi Ram for being paid to petitioner

No. 1. Copy of the resolution passed by the villagers in this behalf has been annexed with the objections.

It is a fact that objections of the respondents are not accompanied by a duly attested affidavit of any officer of the respondents. The respondents

have also not produced the official record of the case yet the same is being taken into consideration inspite of the counsel for the petitioner

objecting to it.

I have Heard learned counsel for the parties and perused the record of the case.

Undisputedly, in the year 1989, when the land of the petitioner was taken by the respondents, there was SRO 181 inforce, which reads as

follows:-

SRO 181. In exercise of the powers conferred by the proviso to section 124 of the Constitution of Jammu and Kashmir and not withstanding

anything contained in the rules and orders for the time being in force, the Governor hereby directed that the appointment of one member of the

family who are left with 50% or less of their agricultural land on account of the same having been acquired by the Government for public purpose,

shall be made without any reference to the Recruitment Board concerned, against a post available at the lowest rank of the cadre for which such a

person is eligible. In case the vacancy is not available in the Department which has acquired the land the General Department shall make such

appointment in any Department where the vacancy may be available. By order of the Government.

In terms of the aforesaid SRO if after acquisition of the land a person is left with 50% or less of the land, one member of the family is entitled to

employment in the department which acquires the land. This SRO provides that if vacancy is not available in the department, which had acquired

the land, General Department shall make such appointment in any department where the vacancy may be available.

In the objections, it has been admitted by the respondents that some land of the petitioner was taken. The contention of the learned counsel for

the petitioner is that the whole of the land was taken. It is not the case of the respondents that the petitioner was left with more than 50% of

agricultural land after the land having been acquired by the Government for public purpose. It has been admitted in the objections by the

respondents that no compensation whatsoever was paid to the petitioner No. 1 in lieu of the land taken for construction of the school. It has been

projected by the respondents that in lieu of the land given by the petitioner to the respondents for construction of the school, the villagers had

collected a sum of Rs. 10,000/- and paid the same to the petitioner No. 1 in lieu of the land. Though, no authentic proof of payment of such

amount to the petitioner directly is available on record as the resolution annexed with the objections only states that said amount was paid to Rikhi

Ram for being paid to the petitioner yet assuming the said payment was made by the villagers to petitioner Krishan Lal, the ""question arises as to

whether any such payment can be deemed to be a compensation paid by the Government in lieu of the land to the petitioner. My answer would be

in the negative, because land was taken by the respondents and, therefore, it was their liability to assess and pay compensation therefore to the

petitioner. The petitioner's property was being taken by the State , the same could not be taken under law without paying the price there for to the

petitioner. Therefore, the petitioner prima facie appears to be entitled to seek employment for one of his family members, in terms of SRO 181 of

1988. However, learned counsel for the respondents, Mrs. Neeru Goswami has argued that petitioner is not entitled to the said benefit under SRO

181 firstly for the reason that no such promise was extended that in lieu of the land one of his family members shall be given appointment and

secondly that SRO 181 stands repealed by subsequent SRO 214 dated 11-07-1991, where under no fresh appointment can be made in respect

of the cases which were under process at the time of issuance of this SRO. It has also been submitted that petitioner who was governed by SRO

181 and right accrued under that SRO stood extinguished by coming into force of SRO 214 of 1991 dated ll-07-1991. Therefore, according to

learned counsel for the respondents no direction can be issued for consideration of the case of the petitioner for providing employment to one of

his family members. On the other hand learned counsel for the petitioners submits that the State cannot deny the benefit of SRO 181 to the

petitioner as a right stood vested in him to get employment for one of his family members in lieu of the land acquired by the Government for the

public purpose.

From a plain reading of the SRO 181 dated 3-6-1989, it is clear that it was in force in the year 1989 when the land of the petitioner was

acquired by the education Department for construction of school, which is admittedly a public purpose, it is manifest that one member of the family

of a person whose land has been acquired and who has been left with 50% or less of his agricultural land was made entitled to appointment of one

of his family members against the post in lowest rank of the cadre for which, such person is eligible without any reference to the Recruitment Board

concerned and the General Department was bound to issue such appointment order in the department where the vacancy may be available. The

right was thus vested and after having been acquired could not be taken away subsequently by enacting SRO 214 of 1991 dated 11-07-1991,

which is prospective in nature and thus docs not apply to the rights of a person vested under SRO 181 of 1989. A right vested under SRO 181 is

an independent right and did not depend upon holding out any promise to the person whose land had been acquired without payment of

compensation as price of the land and even otherwise this Court, in case reported in 2003(2) S.L.J. Ali Mohammad Bhat and Anr. v. State of

J&K and Ors., has held:-

Apart from the SRO 214 being violative of Article 14 and 16, respondents are also estopped from denying employment to the petitioners after

taking away their property without paying compensation and on the promise of providing employment. Doctrine of equitable estoppel is fully

attracted in the facts and circumstances of the present case. In addition to this every citizen has legitimate expectations that the model State with its

socialistic and democratic approach will act fairly particularly when the citizens are inducted to act in a particular manner on the promise of some

incentive. If a person acts on any legitimate expectations and changes his positions to his detriments, he cannot be refused to benefit of any promise

or the expectations which is generated by the State.

As a State, by enacting SRO 181 itself had extended the promise that if it would take land of a person without payment of compensation and if

such persons is left with 50% of less of agricultural land, after such acquisition, employment to one of his family members shall be provided. After

extending such promise, the state cannot be allowed to back out, after having taken the land.

In the circumstances of the present case, therefore, the petitioner held to be entitled to benefit of SRO 181. The writ petition as such is

allowed. The respondents are directed to consider the case of the petitioner under SRO 181 and issue the appointment order in terms thereof. This

shall be done within a period of three months.